Citation Nr: 0122625
Decision Date: 09/17/01 Archive Date: 09/24/01
DOCKET NO. 00-13 344 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. The evaluation of bilateral varicose veins.
2. Entitlement to a compensable rating for anemia with history
of blackout spells.
3. Entitlement to a compensable rating for chronic sinusitis.
4. Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: American Red Cross
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
D. Jeffers, Counsel
INTRODUCTION
The veteran served on active duty from July 1986 to December
1988, when she received a general discharge.
This case previously came before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision of the
Jackson, Mississippi, Department of Veterans (VA), Regional
Office (RO), which granted service connection for bilateral
varicose veins and initially assigned a noncompensable disability
evaluation. That decision also denied claims for depression,
anemia and sinusitis. The veteran presented testimony at a
personal hearing held by the Hearing Officer at the local VARO in
October 1996. By decision dated in May 1997, an increased rating
to 10 percent was granted for bilateral varicose veins. See AB
v. Brown, 6 Vet. App. 35, 38 (1993) (a claimant is presumed to be
seeking the maximum rating allowed). Service connection for PTSD
was denied in a February 1998 rating decision.
The veteran presented testimony at a videoconference hearing held
by a Member of the Board, Michael D. Lyon, in January 1999. It
is noted that the veteran provided testimony relevant to the
issue of entitlement to an increased initial evaluation for
bilateral varicose veins at that time. Thereafter, in an August
1999 decision, the Board granted service connection for
sinusitis. The Board also remanded for further development the
issues of entitlement to an increased rating for varicose veins;
service connection for an acquired psychiatric disorder,
including PTSD and depression; and service connection for anemia
with blackouts.
This case also comes to before the Board on appeal from a
subsequent, April 2000, rating decision. In that decision,
service connection for PTSD and for anemia with blackouts was
granted, and initial ratings of 10 percent and 0 percent were
assigned, respectively. That decision also assigned an initial
noncompensable evaluation for sinusitis. Finally, the April 2000
decision confirmed the 10 percent rating for bilateral varicose
veins for the period from October 26, 1995 to January 11, 1998,
but granted separate 10 percent ratings for varicose veins of
each leg effective from January 12, 1998. The veteran disagreed
with the ratings assigned. The case was thereafter returned to
the Board.
In a written statement to the Board dated in October 2000, the
veteran's representative requested a videoconference hearing.
The request was granted, and in November 2000, the Board remanded
the case to the RO for the scheduling such hearing. The veteran
and her spouse presented testimony at a videoconference hearing
before a Member of the Board, Thomas J. Dannaher, in January
2001. At that time, the veteran again provided testimony
pertaining to the issue of entitlement to an increased initial
evaluation for bilateral varicose veins. She further indicated
that she would be faxing directly to the Board copies of her VA
medical records through January 2001. The veteran's appeal was
held in abeyance pending the submission of additional medical
evidence.
Under the applicable regulation, the appellant or representative
may submit additional evidence pertinent to the claims on appeal
if it is received by the Board within 90 days after her claim is
transferred to the Board for appellate review, or until the date
the appellate decision is promulgated by the Board, whichever
comes first. In addition, any evidence which is submitted at a
hearing on appeal which was requested during such period will be
considered to have been received during such period even though
the hearing may have been held following the expiration of the
period. 38 C.F.R. § 20.1304(a) (2000).
On February 2, 2001, the Board received copies of VA treatment
records of the veteran dated in January 2001 with a signed waiver
of initial consideration by the agency of original jurisdiction.
As this additional evidence was specifically requested during the
course of the veteran's January 2001 personal hearing, it has
been accepted by the Board. 38 C.F.R. § 20.1304 (a) (2000).
On July 13, 2001, the Board received additional copies of VA
treatment records of the veteran from 1999 to 2001. Later that
month, the veteran's accredited representative submitted on her
behalf a waiver of initial consideration by the agency of
original jurisdiction. As this evidence was also specifically
requested during the course of the veteran's January 2001
personal hearing, it has also been accepted by the Board.
38 C.F.R. § 20.1304 (a) (2000).
Because testimony pertinent to the veteran's bilateral varicose
veins claim was presented at separate hearings held by different
Board Members, the issue has been assigned to and will be decided
by a panel of three Board Members, which includes both Michael D.
Lyon and Thomas J. Dannaher, pursuant to 38 C.F.R. § 19.3 (2000).
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's bilateral varicose veins and anemia claims has been
obtained by the agency of original jurisdiction.
2. The VA Schedule for Rating Disabilities pertaining to the
Cardiovascular System was amended effective January 12, 1998.
3. The veteran filed her 'original' claims for service
connection for bilateral varicose veins and anemia on October 26,
1995.
4. The 'old' rating criteria for evaluation of bilateral
varicose veins are more favorable insofar as they provide for a
higher evaluation for the veteran's bilateral varicose veins.
5. Throughout the appeal period, the veteran's bilateral
varicose veins have been manifested by varicosities of the lower
extremities above and below the knee with complaints of
persistent pain on exertion, and occasional edema; severe
disability, with secondary involvement of the deep circulation,
as demonstrated by Trendelburg's and Perthe's tests, with
ulceration, stasis pigmentation or dilatation of the major veins
or persistent edema is not shown.
6. Throughout this appeal period, the veteran's anemia has been
essentially asymptomatic and controlled with iron replacement
therapy.
CONCLUSIONS OF LAW
1. The criteria for assignment of an initial 30 percent
disability evaluation, and no more, for bilateral varicose veins
are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2,
4.3, 4.7, Diagnostic Code 7120 (in effect prior to January 12,
1998).
2. The criteria for assignment of an initial compensable
disability evaluation for
service-connected anemia with history of blackout spells are not
met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, Diagnostic Code 7700 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000). This law eliminates the concept of a well-grounded
claim, redefines the obligations of VA with respect to the duty
to assist, and supersedes the decision of the United States Court
of Appeals for Veterans Claims (CAVC) in Morton v. West, 12 Vet.
App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA
cannot assist in the development of a claim that is not well
grounded). The new law also includes an enhanced duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. Regulatory changes
implementing VCAA were published August 29, 2001. See 66 Fed.
Reg. 45620-45632 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§§ 3.102, 3.156, 3.159, 3.326).
The VCAA is applicable to all claims filed on or after the date
of enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a),
114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1
Vet. App. 308 (1991).
In the circumstances of this case, however, a remand would serve
no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a particular
case; such adherence would result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran are to be avoided).
The RO has already obtained adequate examinations with regard to
the nature and extent of the veteran's service-connected
bilateral varicose veins and anemia with blackout spells.
Moreover, the veteran has been specifically apprised of the
evidence considered in rating decisions, the statement of the
case and supplemental statements of the case. She has also been
afforded personal hearings at both the RO and Board levels.
Following her January 2001 Board hearing, the veteran also
submitted copies of her most recent VA treatment records.
Accordingly, the Board finds that VA has satisfied the duties to
assist and to notify the veteran of the evidence necessary to
substantiate and complete these claims. See 38 U.S.C. § 5103A
(West Supp. 2001); See 66 Fed. Reg. 45630 (Aug. 29, 2001) (to be
codified at 38 C.F.R. § 3.159).
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment of
earning capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4
(2000). When a question arises as to which of two evaluations
shall be assigned, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria required
for that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2000). In evaluating the severity of a
particular disability, it is essential to consider its history.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1
and 4.2 (2000).
As a preliminary matter, the Board observes that the Court has
held that there is a distinction between a veteran's
dissatisfaction with the initial rating assigned following a
grant of service connection, and a claim for an increased rating
of a service-connected condition. Fenderson v. West, 12 Vet.
App. 119 (1999). The Court noted that a claim for increased
rating is a new claim, which is based upon facts different from
those relied upon in a prior final denial of the veteran's claim.
Original claims are, as matter of law, those placed into
appellate status by virtue of a NOD expressing disagreement with
the initial rating awards and never ultimately resolved until the
Board decision on appeal. See Fenderson at 125 (citations
omitted). At the time of an initial rating, "separate ratings
can be assigned for separate periods of time based on the facts
found," a practice known as "staged" ratings." See Fenderson at
126 (citing 38 C.F.R. §§ 3.400, 3.500). The bilateral varicose
veins and anemia issues presently before the Board involve
initial ratings.
i. Bilateral Varicose Veins
In conjunction with the present appeal, the veteran was afforded
VA examination in March 1996. At that time, she stated that she
wore support hose and had tingling and swelling in the backs of
both legs when she stood for prolonged periods. Physical
examination revealed patches of superficial varicosities along
the right leg, measuring 3-centimeters by 6-centimeters. A 2-
centimeter patch of superficial varicosities was noted
posteriorly on the left thigh. About the left and the right
ankles were 7-centimeters by 3-centimeters and 8-centimeters by
9-centimeters patches of spidery superficial varicosities. The
right ankle also had 10-centimeters by 6-centimeters and 6-
centimeters by 3-centimeters patches of superficial varicosities.
There was no evidence of ulceration, no stasis pigmentation or
dermatitis, and no dilatation of the major veins. The diagnostic
finding was noted to be patches of superficial varicosities above
and below the left knee, as well as below the right knee.
By decision issued in April 1996, the RO granted service
connection and assigned a noncompensable disability evaluation
for bilateral varicose veins from October 26, 1995. The veteran
then timely completed an appeal with respect to the rating
assigned.
The veteran presented testimony at a personal hearing held by the
Hearing Officer at the local VARO in October 1996. She testified
that she wore support hose as treatment for her varicose veins.
She also noted that her disability required her to take frequent
breaks from her job as a cosmetologist because of the pain in her
legs. The veteran also reported that she experiences numbness
and cramps at night, as well as constant pain. At the conclusion
of the hearing, the veteran submitted copies of post-service
treatment records developed by the service department between
1989 and 1991. However, these records pertain to a disorder not
currently at issue on appeal.
By decision and supplemental statement of the case issued in May
1997, the Hearing Officer granted a 10 percent rating for
bilateral varicose veins from October 26, 1995.
In September 1997, the veteran was afforded VA examination by the
same examiner who saw her in 1996. The examination report noted
that since the previous examination, the veteran reported that
her legs became much worse in that they cramp and swell when she
runs. The veteran indicated that she was unable to run, and was
limited in walking. In addition, she noted that her varicose
veins have extended to above the knee and on the back of both
legs. She also noted that she is required to wear support hose.
Physical examination revealed superficial varicosities on both
thighs and legs. On the left leg, the lesser saphenous, below
the knee, was dilated to 2-centimers in the left calf. There was
also 2+ pitting pretibial and ankle edema. The calf
circumference was 37-centimeters, bilaterally. Venous Dopplers
were suggested.
Additional VA outpatient treatment records developed between 1995
and 1997 were thereafter obtained. These included a May 1997
report of treatment for complaints relative to varicose veins and
shin pain on exercise. Physical examination at that time
revealed very small veins, subcutaneous, on the lateral aspect of
both thighs. There were no varicosities in the calf region. She
was advised to wear support hose as needed and to reduce her
exercise level from 3-miles in 30 minutes to 2-miles in 30
minutes.
The RO confirmed and continued the 10 percent evaluation assigned
for bilateral varicose veins in a November 1997 rating decision.
In January 1999, the veteran presented testimony at a
videoconference hearing held by one of the undersigned Members of
the Board, Michael Lyon. With respect to her varicose veins, the
veteran stated that they had gotten worse. She noted that she
had been experiencing cramping, as well as a sensation of
piercing-type pins and needle pain, in the back of her legs. She
noted that she was working as a paralegal in a law firm; this
employment permitted her to walk, sit or stand and did not
confine her to one area.
In August 1999, the Board remanded the veteran's bilateral
varicose veins claim to the RO for initial consideration of the
revised diagnostic criteria pertaining to Disease of the Arteries
and Veins, including varicose veins. See 38 C.F.R. Part 4,
Diagnostic Code 7120 (revised as of January 12, 1998).
In February 2000, the veteran was afforded VA examination of her
varicose veins of the lower extremities. She complained of both
a problem with appearance, as well as a burning, stinging
sensation with prolonged standing. On physical examination of
the right leg, it was noted that, about the right lateral aspect
of the upper calf, there was a faintly visible tortuous vein
extending over an area of approximately 2-inches, as well as a
nest of faintly visible but nonraised veins below this
approximately 3-inches by
2-inches. These were noted to be nontender without evidence of
skin breakdown or ulceration; rather, it was noted to be simply
with faint bluish discoloration under the skin. On the lateral
aspect of the right lower thigh, there was a one-inch, slightly
raised but compressible, varicosity without evidence of skin
breakdown ulceration and without unusual tenderness. On the left
leg, there was a nest of faintly visible, but nonraised, veins on
the lateral posterior aspect of upper thigh, and then an
approximately 2-inches tortuous, nonraised, faintly visible
varicosity over the lateral posterior aspect of the knee.
Posteriorly and about the lower third of the thigh was a 1-inch
by 1-inch raised and compressible, but non-ulcerated, varicosity
that was slightly tender to palpation. The skin was otherwise
warm and dry, without evidence of ulceration or depigmentation.
Pulses were present in the lower extremities and normal. There
was no evidence of edema. Eight color photographs of the
veteran's legs, consisting of side, front and back views, were
included. The diagnosis was bilateral varicose veins of the
lower extremities.
By rating decision in April 2000, the RO confirmed and continued
the 10 percent rating for bilateral varicose veins from October
26, 1995 to January 11, 1998, but granted separate 10 percent
ratings for varicose veins of each leg effective from January 12,
1998.
In January 2001, the veteran and her spouse presented testimony
at a videoconference hearing held before Board Member Thomas J.
Dannaher. As to her varicose veins, she indicated that they
looked worse than they had previously. Specifically, she noted
that she was no longer able to wear skin tone hose because the
veins showed through and embarrassed her. She noted that she
still had swelling and pain in her legs, temporarily relieved by
taking Motrin or Midol, elevating the legs, or soaking in hot
water with a little mint or Epsom salt at least once a week. She
indicated that the disability had progressed to the point where
she was no longer able to fully perform as a cosmetologist;
specifically, she noted that that position required prolonged
standing and that she could not do the work sitting. Through VA
vocational rehabilitation, she was able to go back to school and
become a paralegal. Her paralegal job has alleviated some of the
pain because there no longer was a great amount of stress on her
legs and she was able to get up and walk around or sit when she
needed to do so. She described her right leg as being worse.
She noted that if the day before was strenuous, such as when she
did yardwork, she felt the effects on the following day.
Specifically, she indicated that her legs became tingling, and
that in the right one there was a lot of pain behind the kneecap
area. This would force her to sit down, and she was unable to
get a lot of work done.
On July 13, 2001, the Board received additional copies of VA
treatment records of the veteran dated from 1999 to 2001. A
January 2001 Nursing Note reflects that the veteran was seen with
complaints of varicose veins. Specifically, she indicated that
her veins were getting bigger, and swelling more. She further
indicated that her circulation had gotten worse and that she was
having pain that she rated as a 5 on a scale from 1 to 10.
The veteran's varicose veins are evaluated pursuant to the
criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7120.
During the pendency of this appeal, the criteria for evaluating
cardiovascular disabilities were changed and the new regulations
became effective on January 12, 1998. See 62 Fed. Reg. 65207
(1997). Where a law or regulation changes after a claim is filed
or reopened, but before the administrative or judicial appeals
process has been concluded, the version of the law or regulation
most favorable to the appellant must apply unless Congress or the
Secretary provides otherwise. Karnas v. Derwinski, 1 Vet. App.
308 (1991). However, in a precedent opinion of the VA Office of
the General Counsel, it was held that, when a provision of the VA
rating schedule is amended while a claim for an increased rating
under that provision is pending, the Board must determine whether
the intervening change is more favorable to the veteran, and, if
the amendment is more favorable, apply that provision to rate the
disability for periods from and after the effective date of the
regulatory change. VAOPGCPREC 3-2000 (April 10, 2000); see also
DeSousa v. Gober, 10 Vet. App. 461, 465-67 (1997).
Under the "old" version of Diagnostic Code 7120, in effect prior
to January 12, 1998, a 10 percent rating was warranted for
moderate disability, varicosities of the superficial veins below
the knees, with symptoms of pain and cramping on exertion,
unilateral or bilateral. Moderately severe disability, involving
superficial veins above and below the knee, with varicosities of
the long saphenous, ranging in size from one to two centimeters
in diameter, with symptoms of pain or cramping on exertion,
without involvement of the deep circulation warranted a 20
percent rating when unilateral and 30 percent when bilateral.
Severe disability, involving superficial veins above and below
the knee, with involvement of the long saphenous, ranging over 2
centimeters in diameter, marked distortion and sacculation, with
edema and episodes of ulceration, no involvement of deep
circulation, warranted a 40 percent rating when unilateral and a
50 percent rating when bilateral. Pronounced disability, with
the findings for the severe condition with secondary involvement
of the deep circulation, as demonstrated by Trendelenburg's and
Perthe's tests, with ulceration and pigmentation, warranted a 50
percent rating when unilateral and a 60 percent rating when
bilateral. 38 C.F.R. Part 4, Diagnostic Code 7120 (1997). The
diagnostic code further directs that severe varicosities below
the knee with ulceration, scarring, or discoloration and painful
symptoms will be rated as moderately severe. 38 C.F.R. Part 4,
Diagnostic Code 7120, Note (1997).
Under the "new" version of Diagnostic Code 7120, effective
January 12, 1998, varicose veins manifested by intermittent edema
of an extremity or aching and fatigue in a leg after prolonged
standing or walking, with symptoms relieved by elevation of the
extremity or compression hosiery warrants a 10 percent rating. A
20 percent rating is warranted for persistent edema, incompletely
relieved by elevation of an extremity, with or without beginning
stasis pigmentation or eczema. A 40 percent rating is warranted
for persistent edema and stasis pigmentation or eczema, with or
without intermittent ulceration. A 60 percent rating is
warranted for persistent edema or subcutaneous induration, stasis
pigmentation or eczema, and persistent ulceration. A 100 percent
rating is warranted for massive, board-like edema with constant
pain at rest. 38 C.F.R. Part 4, Diagnostic Code 7120 (2000).
The foregoing evaluations are for involvement of a single
extremity. If more than one extremity is involved, each involved
extremity is to be evaluated separately and the ratings combined
(under 38 C.F.R. § 4.25), using the bilateral factor (38 C.F.R. §
4.26), if applicable. 38 C.F.R. Part 4, Diagnostic Code 7120,
Note (2000).
The Board finds that a disability evaluation of 30 percent under
the "old" rating criteria is warranted. Evaluation of the
lower extremities separately under the "new" version of the
rating criteria does not afford the veteran an equal or higher
disability evaluation. The medical evidence of record reflects
that the veteran has consistently been seen with varicosities
above and below the knee with complaints of pain and cramping on
use. The varicosities have been seen in large patches above and
below the knee of each leg with pitting edema observed on VA
examination in 1997. While there has been no mention of
involvement of the long saphenous vein, the exhibited symptoms
closely approximate the criteria for a 30 percent evaluation.
However, the varicose veins are not severe. There is no evidence
of skin breakdown, marked distortion and sacculation, involvement
of deep circulation or ulceration as to support assignment of a
50 percent evaluation. Therefore, a disability evaluation of 30
percent, but no more, is warranted under the "old" version of
Diagnostic Code 7120.
The Board finds that evaluation of the varicose veins under the
"new" version of the rating criteria does not afford the
veteran an equal or higher combined disability evaluation. As
noted above, the revised regulation has resulted in award of 10
percent for each leg with an added bilateral factor of 1.9
percent as of January 12, 1998. This would not equal or
approximate the evaluation of 30 percent under the "old"
version. See 38 C.F.R. § 4.25 (2000).
The record does not reflect that a rating in excess of 10 percent
for each leg is warranted under the new criteria. Although the
veteran continues to complain of pain and swelling, the most
recent VA examination report, which included color photographs of
her lower extremities, reflects that her veins are faintly
visible and faintly bluish in color in some areas. The February
2000 VA examiner noted that the veteran's skin was otherwise warm
and dry, without evidence of ulceration or depigmentation.
Pulses were present in the lower extremities and normal. There
was no evidence of edema. Overall, she does not manifest the
symptoms, i.e. persistent edema, incompletely relieved by
elevation of the extremity, with or without beginning of stasis
pigmentation or eczema, required for the next higher evaluation
under the "new" version of Diagnostic Code 7120 for either
lower extremity.
ii. Anemia with Blackout Spells
Review of the service medical records reveals that the appellant
was diagnosed in August 1987 with severe iron deficiency anemia.
She was prescribed an iron supplement; subsequent laboratory
testing conducted in August 1988 revealed normal values for
hemoglobin and hematocrit as indicated by the examiner who
conducted the October 1988 separation examination. However, the
examiner noted that the appellant was still symptomatic.
Post-service medical records indicate that the appellant had low
red blood cell values and indices in 1991. A VA clinic note,
dated in January 1996, indicated that the appellant was thought
to be suffering from thalassemia. A March 1996 VA clinic note
indicated that the appellant continued to be prescribed an iron
supplement.
In August 1999, the Board remanded the case to the RO in part for
the purpose of determining the nature of the veteran's anemia.
The veteran was afforded a VA examination in February 2000. The
examination report reflects that the examiner reviewed the record
and determined that a blood disorder was first noted in service.
Mild iron deficiency anemia related to irregular menses was
diagnosed, and was treated with iron. On present examination,
the veteran was noted to not be anemic, but reported that she was
taking iron replacements. Laboratory findings indicated a
hemoglobin level of 12.7-grams. The examiner indicated that
without rechecking her after discontinuation of iron, he had no
way of saying whether the veteran would be anemic off iron
therapy. History of iron deficiency anemia was diagnosed.
Based on the foregoing, the RO granted service connection and
assigned a noncompensable disability evaluation for anemia with
history of blackout spells in an April 2000 rating decision. The
effective date of the evaluation was October 26, 1995.
Under the provisions of 38 C.F.R. § 4.117, DC 7700, a 100 percent
rating is warranted for anemia if diagnostic testing reveals
hemoglobin of 5 gm/100 ml or less, with findings such as high
output congestive heart failure or dyspnea at rest. A 70 percent
rating applies if anemia is manifested by hemoglobin of 7 gm/100
ml or less, with findings such as dyspnea on mild exertion,
cardiomegaly, tachycardia (100 to 120 beats per minute) or
syncope (three episodes in the last six months). Anemia is rated
as 30 percent disabling if the hemoglobin is 8 gm/100 ml or less,
with findings such as weakness, easy fatigability, headaches,
lightheadedness, or shortness of breath. Anemia is rated at 10
percent if the hemoglobin is 10 gm/100 ml or less with findings
such as weakness, easy fatigability, or headaches. Anemia is
rated noncompensable if manifested by hemoglobin of 10gm/100 or
less, asymptomatic. 38 C.F.R. § 4.117, Diagnostic Code 7700
(2000).
During the course of her January 2001 videoconference hearing,
the veteran indicated that she believed that her service-
connected anemia was far more disabling than its current
disability evaluation suggests. Specifically, the veteran
indicated that although she takes iron pills, she continues to
have dizzy spells and some blackout spells, a lot of times, at
least once a month. She noted that she experiences tiredness,
weakness, and has a real low amount of energy; she stated, "I'm
not able to function every day at full speed." She further
noted that she experiences a sense of being cold all of the time,
to the point where she wears sock and long underwear, as well as
sweater, all of the time.
After a review of the record, the Board finds that entitlement to
a compensable initial disability evaluation for service-connected
anemia is not shown.
Although the veteran has indicated a history of blackout spells,
these have not been confirmed by any medical authority. The
Board observes that she has not had a hemoglobin level of 10
gm/100 ml or less at any time during the appellate period. VA
treatment records developed between 1995 and 2001 included
laboratory findings specific to the issue at hand. In 1996, a
hemoglobin level of 12.6 gm was noted. In 1997, she was seen
with a hemoglobin level of 13.1 gm. In 2000, hemoglobin levels
were 12.7 gm (on above-mentioned VA examination), as well as 12.2
gm and 12.7 gm (in July). Treatment records from River Oaks
Hospital included a 1998 laboratory report reflecting a
hemoglobin level of 11.5 (during the veteran's pregnancy). There
have been no objective findings of symptoms related to anemia,
and it was diagnosed by history only on the most recent VA
physical examination. Clearly, such evidence findings does not
reflect the symptoms needed to support a compensable rating under
Code 7700.
iii. Conclusion
In reaching the aforementioned determinations, the Board has
considered all relevant evidence of record, including treatment
records, statements and hearing testimony from the veteran not
specifically discussed above. See Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000) (citing Gonzalez v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000).
While the veteran may still sincerely believe that higher
evaluations for bilateral varicose veins and anemia with blackout
spells are indicated, she is not competent to offer opinions on
questions of medical pathology or severity. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Grottveit v.
Brown, 5 Vet. App 91 (1993). The medical evidence of record does
not support her assertions that the conditions are more disabling
than the Board now finds.
The Board has also considered all potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they have
been raised by the veteran, as required by Schafrath, supra. The
Board finds no legal basis upon which to assign higher ratings.
The preponderance of the evidence is against a rating in excess
of 30 percent for bilateral varicose veins and against a
compensable rating for anemia with blackout spells. The doctrine
of reasonable doubt, therefore, does not apply in this case. 38
U.S.C. § 5107(b) (West Supp. 2001).
In addition, application of the extraschedular provisions is not
warranted. 38 C.F.R. § 3.321(b) (2000). There is no objective
evidence that the veteran's service-connected bilateral venous
disability of the lower extremities and/or anemia with blackout
spells present such exceptional or unusual disability pictures,
with such factors as marked interference with employment or
frequent periods of hospitalization, as to render impractical the
application of the regular schedular standards. She apparently
left her job as a cosmetologist because of her bilateral varicose
veins, but there is no showing that her current paralegal job has
resulted in less pay. Moreover, she has not required inordinate
treatment or hospitalization due to the service-connected
disability. Hence, referral by the RO to the Chief Benefits
Director of VA's Compensation and Pension Service, under the
above-cited regulation, was not required. See Bagwell v. Brown,
9 Vet. App. 337 (1996).
ORDER
A 30 percent rating for bilateral varicose veins is granted,
subject to the regulations governing the payment of monetary
benefits.
A compensable rating for anemia with history of blackout spells
is denied.
REMAND
During the pendency of this appeal, various amendments became
effective as to sections of the VA Schedule for Rating
Disabilities pertaining to the Respiratory System (October 7,
1996) and Mental Disorders (November 7, 1996).
By decision issued in April 2000, the Jackson VARO granted
service connection and assigned a 10 percent evaluation, under
the "revised" rating criteria, for PTSD from October 26, 1995.
That decision also implemented a Board decision granting service
connection for sinusitis and assigned an initial noncompensable
evaluation, under the "revised" rating criteria, from October
26, 1995.
Because the veteran has perfected an appeal as to the assignment
of the initial ratings assigned following the award of service
connection for respiratory disorder and PTSD, the Board is
required to evaluate all the evidence of record reflecting the
period of time between the effective date of the initial grants
of service connection until the present. Fenderson, supra.
The Court has held that where, as in this case, the law or
regulation changes after a claim has been filed or reopened but
before the administrative or judicial appeal process has been
concluded, the version most favorable to the appellant will apply
unless Congress provided otherwise or permitted the Secretary of
the VA to do otherwise and the Secretary did so. Karnas, 1 Vet.
App. at 313 (1991). Because Congress has not provided otherwise
in this particular instance and the veteran filed her claims
prior to these regulatory revisions, the Board concludes that her
claims should have been reviewed under both the "old" and
"new" rating criteria. Id.
Since these claims must be remanded for procedural purposes, the
veteran should also be afforded VA rating examinations. In
particular, the Board notes that the veteran has several
respiratory disorder in addition to her service-connected
sinusitis. VA treatment records, to include examination reports,
reflect diagnoses of chronic obstructive pulmonary disease,
bronchial asthma, sinusitis and vasomotor, probably allergic,
rhinitis (as reflected on most recent VA examination). As such,
it would be beneficial if an examiner reconciled these findings
and determined the symptoms and degree of impairment related to
the service-connected sinusitis.
Generally, if further evidence or clarification of the evidence
or correction of a procedural defect is essential for a proper
appellate decision, the Board shall remand the case to the agency
of original jurisdiction, specifying the action to be undertaken.
38 C.F.R. § 19.9 (2000).
On the basis of the current record, the Board has identified
certain duties to notify and to assist that must be rendered to
comply with the VCAA. The RO still has the responsibility for
ensuring compliance with the VCAA. Accordingly, the case is
REMANDED for the following:
1. The veteran should be requested to
identify all sources of recent treatment she
received for sinusitis and PTSD, and to
furnish signed authorizations for release to
the VA of private medical records in
connection with each non-VA source she
identifies. Copies of the medical records
from all sources she identifies should then
be requested. Efforts to obtain these
records should also be documented and any
evidence received in response to this request
should be associated with the claims folder.
The veteran should be notified if any
development by the RO is unsuccessful, and of
her options in that event.
2. The RO must then schedule the veteran for
a VA otolaryngologic examination to evaluate
her sinusitis. All indicated tests should be
conducted. The veteran's claims folder
should be reviewed by the specialist in
conjunction with the examination. The
examiner should specify what symptoms are due
to sinusitis as opposed to any nonservice-
connected coexisting disorder. The examiner
should describe the nature and severity of
the veteran's sinusitis. The frequency and
duration of acute outbreaks of sinusitis
should be described. A discussion of the
salient facts and the medical principles
involved will be of considerable assistance
to the Board. The examination report should
then be associated with the veteran's claims
folder.
3. The RO should also schedule the veteran
for a VA mental disorders examination to
determine the current severity of her
service-connected PTSD. The claims folder
must be reviewed by the examiner in
conjunction with the examination. The
examiner should differentiate between the
symptoms due to PTSD, and those due to any
other, nonservice-related, mental disorders.
To this end, the examiner should integrate
the previous psychiatric findings and
diagnoses with current findings to obtain a
true picture of the nature of the veteran's
psychiatric status. The examiner should
render an opinion for the record as to the
degree to which symptoms of PTSD affect the
veteran's ability to establish and maintain
effective and favorable relationships with
people (social impairment), and the degree to
which they affect her reliability,
productivity, flexibility, and efficiency
levels in performing occupational tasks
(industrial impairment). Based upon a review
of the record and the examination, the
examiner should provide a Global Assessment
of Functioning Score (GAF) provided in the
Diagnostic and Statistical Manual for Mental
Disabilities, indicating the level of
impairment produced by the PTSD. It is
imperative that the examiner also provides a
definition of the GAF score. A discussion of
the salient facts and the medical principles
involved will be of considerable assistance
to the Board. The examination report should
then be associated with the veteran's claims
folder.
4. Following completion of the above actions,
the RO must review the claims file and ensure
that all other notification and development
action required by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475,
as well as the more recent Duty to Assist
Regulations for VA, 66 Fed. Reg. 45620-45632
(Aug. 29, 2001) (to be codified at 38 C.F.R.
§§ 3.102, 3.156, 3.159, 3.326), is completed.
In particular, the RO should ensure that the
new notification requirements and development
procedures contained in 38 U.S.C.A. §§ 5102,
5103, 5103A, and 5107 (West Supp. 2001) are
fully complied with and satisfied.
5. The RO should then re-adjudicate the
remaining claims. The rating criteria for the
Respiratory System in effect both prior to and
after October 7, 1996 and for Mental Disorders
in effect both prior to and after November 7,
1996 should be considered, and the criteria
more favorable to the veteran should be
applied within the confines of VAOPGCPREC 3-
2000 (April 10, 2000). If either of the
benefits sought on appeal remains denied, the
appellant and her representative should be
provided with an appropriate supplemental
statement of the case and given the
opportunity to respond.
The case should then be returned to the Board for further
appellate consideration, if otherwise in order. By this REMAND
the Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted. The purpose of the REMAND
is to further develop the record. No action is required of the
veteran until she is notified by the RO; however, the veteran is
advised that failure to cooperate by not reporting for any
scheduled examination may result in the denial of the claims on
appeal. 38 C.F.R. § 3.655 (2000).
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302,
108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001)
(Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to
provide expeditious handling of all cases that have been remanded
by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45
and 38.02-38.03.
______________________________
____________________________
MICHAEL D. LYON GEORGE R. SENYK
Member, Board of Veterans' Appeals Member, Board of
Veterans' Appeals
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals